Cunningham v. Lyft, Inc.

17 F.4th 244

• Court: Court of Appeals for the First Circuit
• Decided: November 5, 2021
• Docket: 20-1373P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 20-1373, 20-1379

MELODY CUNNINGHAM, individually and on behalf of all others similarly situated; FRUNWI MANCHO, individually and on behalf of all others similarly situated,

Plaintiffs, Appellees/Cross-Appellants,

MARTIN EL KOUSSA, individually and on behalf of all others similarly situated; VLADIMIR LEONIDAS, individually and on behalf of all others similarly situated,

Plaintiffs,

v.

LYFT, INC.; LOGAN GREEN; JOHN ZIMMER,

Defendants, Appellants/Cross-Appellees.

Nos. 20-1544, 20-1549, 20-1567

MELODY CUNNINGHAM, individually and on behalf of all others similarly situated; FRUNWI MANCHO, individually and on behalf of all others similarly situated; MARTIN EL KOUSSA, individually and on behalf of all others similarly situated; VLADIMIR LEONIDAS, individually and on behalf of all others similarly situated,

Defendants, Appellants/Cross-Appellees. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges, and McElroy,* District Judge.

Elaine J. Goldenberg, with whom Jeffrey Y. Wu, Benjamin G. Barokh, Donald B. Verrilli, Jr., Rachel G. Miller-Ziegler, Rohit K. Singla, Justin P. Raphael, Adele M. El-Khouri, Munger, Tolles & Olson LLP, James D. Smeallie, David J. Santeusanio, Andrew E. Silvia, Michael T. Maroney, and Holland & Knight LLP were on brief for appellants. Ben Robbins and Martin J. Newhouse on brief for New England Legal Foundation, amicus curiae. Steven P. Lehotsky, U.S. Chamber Litigation Center, Inc., Archis A. Parasharami, and Mayer Brown LLP on brief for Chamber of Commerce of the United States of America, amicus curiae. Shannon Liss-Riordan, with whom Anastasia Doherty, Adelaide H. Pagano, Anne R. Kramer, and Lichten & Liss-Riordan, P.C. were on brief for appellees. Hugh Baran on brief for National Employment Law Project, Massachusetts Coalition for Occupational Safety and Health, Justice at Work, and New York Taxi Workers Alliance, amici curiae.

November 5, 2021

* Of the District of Rhode Island, sitting by designation. KAYATTA, Circuit Judge. Plaintiffs are Massachusetts-

based rideshare drivers who use the Lyft application and platform

to find passengers. Plaintiffs claim that Lyft misclassifies them

as independent contractors, rather than employees. They seek

relief on their own behalf and on behalf of other drivers who

worked for Lyft in Massachusetts, although a class has not been

certified.

The parties joined issue in a flurry of motions leading

to rulings concerning plaintiffs' requests for preliminary

injunctive relief and Lyft's request to compel arbitration. Lyft

now presses an interlocutory appeal from the denial of its motion

to compel arbitration, while plaintiffs press interlocutory cross-

appeals from the denial of requests for preliminary injunctive

relief, including a so-called "public injunction."1 For the

following reasons, we reverse the order denying Lyft's motion to

compel arbitration, and affirm the denials of preliminary

injunctive relief.

I.

Lyft, Inc., a ridesharing company, uses a smartphone

application to allow customers to hail drivers. Cunningham v.

Lyft, 450 F. Supp. 3d 37, 39 (D. Mass. 2020). In order to work

1Lyft also appealed the order denying the "public injunction" request, to preserve the argument that the order should be vacated for lack of jurisdiction due to the pendency of Lyft's earlier appeal.

- 3 - for Lyft as a driver, "an individual must register, download the

application, and agree to Lyft's Terms of Service." Id. The Terms

of Service spell out how a driver qualifies to use the platform to

connect with riders and how fares are set, collected, and

apportioned. See Cunningham v. Lyft, No. 1:19-cv-11974-IT, 2020

WL 2616302, at *6 (D. Mass. May 22, 2020).

Lyft considers its drivers "independent contractors" and

does not provide them with sick leave benefits. Id. Although

drivers may drive as much or as little as they want, and may also

reject ride requests, Lyft retains the right to deactivate drivers

who violate the Terms of Service or fall below Lyft's "star rating

or cancellation threshold." Id.

In 2018, Lyft updated its Terms of Service. Drivers

could not continue using Lyft to pick up riders until they signaled

their acceptance of the updated Terms of Service by clicking the

"I accept" button. Cunningham, 450 F. Supp. 3d at 39. Those

revised terms stated, in relevant part, that "[t]hese provisions

will, with limited exception, require you to submit claims you

have against Lyft to binding and final arbitration on an individual

basis, not as a plaintiff or class member . . . As a driver or

driver applicant, you have an opportunity to opt out of arbitration

with respect to certain claims." Id. at 39–40 (capitalization

altered). Drivers could also follow a hyperlink directly to the

- 4 - section in the updated Terms of Service containing the arbitration

provision. That section states in relevant part:

YOU AND LYFT MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate ("Arbitration Agreement") is governed by the Federal Arbitration Act . . . ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all claims (defined below) between you and Lyft, including our affiliates, subsidiaries, parents, successors, and assigns, and each of our respective officers, directors, employees, agents, or shareholders . . . . Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US . . . SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND LYFT. These claims include but are not limited to any dispute, claim, or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof . . . the Lyft Platform, the Services, any other goods or services made available through the Lyft Platform, your relationship with Lyft . . . state or federal wage-hour law . . . .

Id. at 40 (alterations in original). The agreement also includes

a "Prohibition of Class Actions and Non-Individualized Relief."

Id.2 Finally, the agreement provides that "disputes regarding the

2 This prohibition reads: YOU UNDERSTAND AND AGREE THAT YOU AND LYFT MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT

- 5 - scope, applicability[,] enforceability, revocability or validity

of the Class Action Waiver may be resolved only by a civil court

of competent jurisdiction and not by an arbitrator." Id. at 40–

41.

Plaintiff Melody Cunningham has been driving for Lyft

since June 2013. Plaintiff Frunwi Mancho has been driving for

Lyft since January 2016. Both clicked the "I accept" button on

the updated Terms of Service in 2018 and neither opted out of the

arbitration agreement. Id. at 41. Both Mancho and Cunningham

used the Lyft platform to pick up passengers, some of whom were

traveling to or from Logan Airport in Boston, Massachusetts. Id.

ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS ("CLASS ACTION WAIVER"). YOU UNDERSTAND AND AGREE THAT YOU AND LYFT BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING ... The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. Cunningham, 450 F. Supp. 3d at 40 (alteration in original).

- 6 - at 41. Mancho also occasionally drove passengers across state

lines, including from Haverhill, Massachusetts to Salem, New

Hampshire, and from Logan Airport to Portsmouth, New Hampshire.

Cunningham did not drive any passengers across state lines. Id.

Lyft contends that nation-wide, "approximately 98% of

rides provided by drivers using Lyft and similar ridesharing

platforms take place entirely within the boundaries of a single

state." From September 17, 2016 to April 7, 2020, "fewer than 2%

of all [rides given by drivers for Lyft] in the United States

crossed state lines. And during that same period, fewer than 0.5%

of rides on the Lyft platform that began in Massachusetts crossed

state lines. Instead, those rides were short and localized." In

2018, for example, "on average, drivers using rideshare platforms

in Massachusetts gave rides that lasted under 16 minutes and

traveled fewer than 5 miles." Interstate travel by drivers who

use the competing Uber platform is similarly rare, as "only 2.5%

of all trips fulfilled using the Uber Rides marketplace in the

United States between 2015 and 2019 . . . started and ended in

different states." Capriole v. Uber Techs., Inc., 7 F.4th 854,

864 (9th Cir. 2021)(internal quotation marks omitted).

Plaintiffs do not quibble with Lyft's numbers. Instead,

they train their focus primarily on a different set of numbers,

based on trips to and from Logan Airport. Plaintiffs assert that

Lyft and Uber "represent about 40% of the traffic at Logan Airport

- 7 - during peak times" and "provide literally millions of rides to and

from Logan airport every year." Plaintiffs add that "[a] whopping

62% of Massachusetts Lyft riders have used Lyft to get to the

airport."

II.

We first address the issue of compulsory arbitration.

The parties agree that the Federal Arbitration Act (FAA) applies

unless plaintiffs fit within an exemption for "a class of workers

engaged in foreign or interstate commerce." Our review of this

issue is de novo. Barbosa v. Midland Credit Mgmt., Inc., 981 F.3d

82, 86 (1st Cir. 2020).

A.

The FAA was enacted in 1925 "in response to a perception

that courts were unduly hostile to arbitration." Epic Sys. Corp.

v. Lewis, 138 S. Ct. 1612, 1621 (2018). The FAA establishes "a

liberal federal policy favoring arbitration" and reflects "the

fundamental principle that arbitration is a matter of contract."

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (internal

quotation marks and citations omitted). It also requires courts

to "place arbitration agreements on an equal footing with other

contracts" and "enforce them according to their terms." Id.

Central to this appeal is section 1 of the FAA.

Section 1 "exempts employment contracts of certain categories of

workers from the Act's coverage." Waithaka v. Amazon.com, Inc.,

- 8 - 966 F.3d 10, 16 (1st Cir. 2020), cert. denied, 141 S. Ct. 2794

(2021), reh'g denied, 141 S. Ct. 2886 (2021). Specifically,

section 1 provides that "nothing herein contained shall apply to

contracts of employment of seamen, railroad employees, or any other

class of workers engaged in foreign or interstate commerce." 9

U.S.C. § 1. The Court has referred to the phrase "any other class

of workers engaged in . . . commerce" as a "residual phrase."

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114 (2001).

In Circuit City, the Court rejected the contention that

the residual phrase covered all employees arguably involved in

commerce. Instead, it read the residual phrase as covering only

"transportation" workers. Id. at 119 ("Section 1 exempts from the

FAA only contracts of employment of transportation workers.")

No party to this case contends that the contracts at

issue here are not "contracts of employment of transportation

workers."3 Pointing to the fact that the Supreme Court in Circuit

City referred to the movement of goods, Lyft does contend that

because Lyft drivers generally transport persons, not goods, the

residual phrase does not encompass them. But see Waithaka, 966

3 The Supreme Court has held that section 1 applies to "agreements to perform work," including those of independent contractors. New Prime Inc. v. Oliveira, 139 S. Ct. 532, 544 (2019). Accordingly, the distinction between employees and independent contractors matters not for the threshold question of the FAA's applicability, regardless of its centrality to the underlying dispute. See Waithaka, 966 F.3d at 17.

- 9 - F.3d at 13 (workers "who transport goods or people"); see also

Saxon v. Sw. Airlines Co., 993 F.3d 492, 497 (7th Cir.

2021)(accepting that "the movement of goods accompanying people,

just as much as the movement of goods alone," constituted

interstate commerce for § 1, where the defendant had abandoned the

contrary argument on appeal); Singh v. Uber Techs Inc., 939 F.3d

210, 226 (3d Cir. 2019) (holding that § 1 exempts employment

contracts for "all classes of transportation workers" engaged in

interstate commerce). As it turns out, we need not address this

contention. Rather, we turn our attention to Lyft's principal

contention that these transportation workers are not among a class

of transportation workers who are "engaged in . . . interstate

commerce" within the meaning of section 1. Plaintiffs do not

challenge the premise that they must be among such a class of

transportation workers in order to claim the benefit of the

exemption. Instead, they claim that members of the class of

transportation workers to which they belong are engaged in

interstate commerce for two reasons: (1) Because they take

passengers to and from Logan Airport for trips to and from other

states and countries; and (2) Because some Lyft drivers sometimes

take fares across state lines. We address each argument in turn.

1.

Plaintiffs' argument based on their transportation of

some passengers to and from Logan Airport runs headlong into the

- 10 - instruction supplied by United States v. Yellow Cab Co., 332 U.S.

218 (1947), overruled on other grounds by Copperweld Corp. v.

Indep. Tube Corp., 467 U.S. 752, 759–60, 777 (1984). The Supreme

Court in Yellow Cab considered whether interstate commerce

sufficient to bring the Sherman Antitrust Act into play was present

in two different scenarios involving taxi service.

The first scenario involved the transfer of passengers

and their luggage between rail stations in Chicago. Id. at 228.

At the time, most passengers traveling interstate by rail through

Chicago were required to disembark from a train at one station and

travel up to two miles to board another train at another station

to continue their interstate journey. Id. The railroads often

agreed with their passengers to provide transit between the two

stations. Id. The railroads then contracted with cab companies

to supply the vehicles and drivers for this connecting transit.

Id. at 229.

The second scenario involved taxi cabs in the course of

their normal local taxi service throughout Chicago arranging with

passengers to drive them to or from various locations, including

the rail stations at the beginning or end of their rail journeys.

Id. at 230.

The Supreme Court held that the transfer by motor

vehicles in the first scenario sufficiently implicated interstate

commerce as to make the Sherman Act applicable. Id. at 229. This

- 11 - made common sense: The typical passenger undoubtedly viewed his

or her trip as one interstate journey, with the mid journey

transfer smack within the flow of that trip. Accord Waithaka, 966

F.3d at 22 (finding that transportation workers responsible for

only an intrastate leg of an integrated, interstate journey were

nonetheless understood to be "engaged in interstate commerce" when

the FAA was passed in 1925).

As to the second scenario, however, the Court held that

"when local taxicabs merely convey interstate train passengers

between their homes and the railroad station in the normal course

of their independent local service, that service is not an integral

part of interstate transportation." Yellow Cab, 966 F.3d at 233.

Rather, the interstate journey begins when the passenger "boards

the train at the station and ends when he disembarks at the station

in the city of destination." Id. at 231. "To the taxicab driver,

it is just another local fare." Id. at 232.

The trips by Lyft drivers to and from Logan fit well the

second Yellow Cab scenario. The Lyft driver contracts with the

passenger as part of the driver's normal local service to take the

passenger to the start (or from the finish) of the passenger's

interstate journey. See Capriole, 7 F.4th at 863–64 (finding that

rideshare drivers who take fares to an airport "are less like the

exclusive provider of 'between-station transportation' described

- 12 - in Yellow Cab and more like a 'local taxicab service.'" (quoting

332 U.S. at 228, 233)).

Conversely, the trips by Lyft drivers to and from Logan

fit poorly the first Yellow Cab scenario. The airlines do not

agree to provide the relevant ground transit, and based on the

record before us, neither Lyft nor Lyft drivers contract with the

airlines to help the airlines perform such an undertaking.

We are confident that a scenario not affecting

"interstate commerce" under the Sherman Act would also not qualify

as a scenario in which taxicabs would be "engaged in . . .

interstate commerce" under section 1 of the FAA. The Sherman Act

bars "unreasonable restraints on interstate commerce, regardless

of the amount of commerce affected." Yellow Cab, 332 U.S. at 225.

The Act is broadly construed, see id. at 226, whereas the FAA

exception at issue here is narrowly construed, Circuit City, 532

U.S. at 118. Hence, conduct that does not affect interstate

commerce under the Sherman Act (e.g., local cab rides to the

station) would seem a fortiori not to be conduct "engaged in

interstate commerce" under the FAA's section 1 exception.

Plaintiffs seek to distinguish Yellow Cab by pointing

out that the dropping off and picking up of passengers at Logan is

regulated by the Massachusetts Port Authority, rather than a purely

local entity. But nothing in Yellow Cab even hints that the

- 13 - presence or source of traffic regulation at the point of drop-off

or pick-up bears on the interstate inquiry.

Drawing a line between the interstate transportation

provided by the airlines and the local intrastate transportation

provided by Lyft drivers makes sense when defining the nature of

activity in which plaintiffs are engaged. One would not reasonably

say that plaintiffs are engaged in interstate trucking merely

because they sometimes give truck drivers rides to and from their

garages. Similarly, we do not think that plaintiffs are engaged

in interstate travel merely because they bring passengers to and

from an airport.

Our decision in Waithaka is not to the contrary. There

Amazon (like the railroads in Yellow Cab) agreed with Amazon

customers to transport goods interstate from their point of origin

to the customer's home. See 966 F.3d at 13–14. The local delivery

drivers (like the taxi companies in the first scenario of Yellow

Cab) then agreed with Amazon to carry the goods for a portion of

that single interstate journey ("the so-called 'last mile'"). Id.

Here, by contrast, there is no evidence of any such agreements

between Lyft and the airlines.

Plaintiffs' only other argument for distinguishing the

local taxicab scenario in Yellow Cab from the Logan trips taken by

Lyft drivers rests on an assertion that "Lyft has formed

partnerships with airlines in which airlines promote its service

- 14 - and sometimes even issue credits toward a Lyft ride." But no

evidence of any such partnerships nor any argument to this effect

was presented in the district court. See United States v. Muriel-

Cruz, 412 F.3d 9, 12 (1st Cir. 2005) (limiting appellate review to

the "record extant at the time the district court rendered its

decision."). Nor for that matter do plaintiffs even attempt to

show how these partnerships are analogous to the exclusive

arrangements made between railroads and taxi companies in Yellow

Cab.4

2.

We turn next to plaintiffs' alternative argument that

they fit within the section 1 exemption because some of them

occasionally transport passengers across state lines. We need not

decide how to treat a lawsuit arising out of one of these rare

interstate trips. Nor need we decide whether any particular Lyft

driver engages in interstate commerce. Rather, our task under the

FAA is to decide whether relatively rare (but nevertheless

The Ninth Circuit recently addressed a similar argument 4

"raised for the first time on appeal," concerning airline marketing promotions and ride credits for Uber's ridesharing service. See Capriole, 7 F.4th at 865. Plaintiffs here have acknowledged the nature of the Uber promotions presented in that case and that "[t]he same is true here with Lyft." But the Capriole court found that "nothing about the submitted [airline advertisements] indicates the type of commercial relationship described in Yellow Cab." Id. While we do not have any such materials in the record here, Capriole makes plain, at the least, that such agreements would not necessarily be dispositive.

- 15 - numerically many) interstate trips make Lyft rideshare drivers a

"class of workers engaged in . . . interstate commerce." 9 U.S.C.

§ 1. Yellow Cab does not directly answer this question because

the taxicab drivers in that case never claimed to cross state

lines. 332 U.S. at 230–31.

Lyft contends that plaintiffs are not a class of workers

engaged in interstate commerce under section 1 because not all of

them ever cross state lines and those who do only do so relatively

infrequently. One of the four named plaintiffs in this very case,

who are all said to be typical of the putative class members, never

took a fare across state lines in five years of driving for Lyft,

and fewer than 2% of Lyft rides nationwide cross state lines. So

the question posed is this: Does a class of workers qualify under

section 1 if many but not all of the workers cross states lines on

a very small percentage of their trips?

The two circuits who have considered this question

reached opposite results. In International Brotherhood Of

Teamsters Local Union No. 50 v. Kienstra Precast, Inc., 702 F.3d

954, 958 (7th Cir. 2012), the Seventh Circuit held that cement

truck drivers whose local trips took them across state lines on

roughly two percent of their delivery trips were within the ambit

of the section 1 exemption. Reasoned the court, "there is no basis

in the text of § 1 for drawing a line between workers who do a lot

of interstate transportation work and those who cross state lines

- 16 - only rarely; both sorts of workers are 'engaged in foreign or

interstate commerce.'" Id. Conversely, the Ninth Circuit recently

concluded that Uber drivers are not among a class of workers who

engaged in interstate commerce notwithstanding that 2.5% of Uber

rides cross state lines. Capriole, 7 F.4th at 863. The court

reasoned that driving passengers interstate was not a "central

part of the job description," and that "someone whose occupation

is not defined by its engagement in interstate commerce does not

qualify for the exemption just because she occasionally performs

that kind of work." Id. at 865 (quoting Wallace v. Grubhub

Holdings, Inc., 970 F.3d 798, 800, 803 (7th Cir. 2020)).

As an abstract matter, one might argue that a person

whose job primarily involves intrastate transportation but also,

albeit infrequently, requires interstate transportation might be

engaged in both types of transportation. Nonetheless, for several

reasons we conclude that Lyft drivers are not a class of workers

engaged in interstate commerce.

First, not all Lyft drivers engage in any interstate

transportation. The lead plaintiff, Ms. Cunningham, has in five

years of working as a Lyft driver never taken a passenger across

state lines. So the "class of workers" as a whole is not engaged

in interstate commerce at all. That being said, we also expect

that some workers on passenger railroads may handle only within-

state trips. So we do not rely on this fact alone.

- 17 - More significantly, Circuit City instructs that the "§ 1

exclusion provision [must] be afforded a narrow construction," 532

U.S. at 118, and that we must construe the general language of the

residual phrase "to embrace only objects similar in nature to those

objects enumerated by the preceding specific words," id. at 115.

In section 1, those enumerated objects are "seamen" and "railroad

employees," two classes of transportation workers primarily

devoted to the movement of goods and people beyond state

boundaries. The same cannot even arguably be said of Lyft drivers.

Third, in Waithaka, we noted that "[t]he nature of the

business for which a class of workers perform their activities

must inform [our] assessment" of "whether a class of workers is

'engaged in . . . interstate commerce.'" Waithaka, 966 F.3d at 22

(quoting 9 U.S.C. § 1). Lyft is clearly primarily in the business

of facilitating local, intrastate trips.5

For all of these reasons, collectively, we conclude that

Lyft drivers are not among a class of transportation workers

engaged in interstate commerce within the meaning of section 1 as

narrowly construed. They are among a class of workers engaged

primarily in local intrastate transportation, some of whom

5 Given the similarity between the numbers Lyft cites for Massachusetts and national Lyft drivers, we need not decide at this juncture whether we are considering only Lyft drivers in Massachusetts or whether we are considering all Lyft drivers across the country. Regardless of the sample population, the percentage of interstate trips is miniscule.

- 18 - infrequently find themselves crossing state lines, and are thus

fundamentally unlike seamen and railroad employees when it comes

to their engagement in interstate commerce.

B.

Because we find that the FAA applies, we need not examine

the role of the Massachusetts Uniform Arbitration Act. See Smith

Barney, Inc. v. Critical Health Sys. of N.C., Inc. of Raleigh,

N.C., 212 F.3d 858, 860–61 (4th Cir. 2000) ("Once a dispute is

covered by the [FAA], federal law applies to all questions of

interpretation, construction, validity, revocability, and

enforceability." (alteration in original) (quoting In re Salomon

Inc. S'holders' Derivative Litig., 68 F.3d 554, 559 (2d Cir.

1995))).

III.

Thinking that this case would remain in the district

court rather than be rerouted to arbitration, the district court

entertained and denied plaintiffs' requests for a preliminary

injunction. Now that we have determined that the FAA applies, it

is clear that the dispute between these parties will be for the

arbitrator to decide. In normal course, that would be the end of

it, and we would not need to consider the merits of plaintiffs'

appeal from the denial of their injunctive requests. See Next

Step Med. Co., Inc. v. Johnson & Johnson Int'l, 619 F.3d 67, 70

(1st Cir. 2010) (holding that the decision to arbitrate the entire

- 19 - case typically supersedes the need to decide on injunctive relief).

Next Step, however, acknowledged limited qualifications to this

general rule, including that a district court may issue "an interim

preliminary injunction" to address a "short-term emergency" in the

period before "the arbitrator is set up and able to offer interim

relief itself." 619 F.3d at 70 (emphasis in original). Later the

same year, our court reiterated that "[a] preliminary injunction

pending arbitration is ordinarily temporary emergency relief that

extends only until the arbitrator itself can decide whether to

award relief." Braintree Labs., Inc. v. Citigroup Glob. Mkts.,

Inc., 622 F.3d 36, 40 n.4 (1st Cir. 2010).

Assuming (incorrectly) that arbitration was not

required, the district court nevertheless denied plaintiffs'

requested injunction, for failure to establish any immediate

threat of irreparable injury. Cunningham, 2020 WL 2616302, at *1,

*13–14; Cunningham v. Lyft, No. 1:19-cv-11974-IT, 2020 WL 1323103,

at *3 (D. Mass. Mar. 20, 2020). Reviewing that denial for legal

error or abuse of discretion, Russomano v. Novo Nordisk Inc., 960

F.3d 48, 53 (1st Cir. 2020), we have little to add to that cogent

analysis. Plaintiffs offer no actual evidence of any harm to

themselves that is of a type considered irreparable by an award of

damages. They devote their argument instead to a claim that the

public interest calls for an injunction so as to provide higher

payments to other Lyft drivers, whose behavior in the absence of

- 20 - such payments may harm the public. While the public interest is

certainly a factor to be considered in connection with a motion

for injunctive relief, see, e.g., Winter v. Natural Resources

Defense Council, Inc., 555 U.S. 7, 20 (2008), we can hardly say

that the denial of such a motion in the absence of a showing of

irreparable harm is either legal error or an abuse of discretion.

Moreover, plaintiffs have not even moved to certify a class, and

they can point to no Massachusetts statute that gives them standing

to sue on behalf of other persons not within a certified class.

See Brown v. Trs. of Boston Univ., 891 F.2d 337, 361 (1st Cir.

1989) ("Ordinarily, classwide relief . . . is appropriate only

where there is a properly certified class.").6

6 Plaintiffs point to a California Supreme Court case holding that a California consumer-protection statute provided for "public injunctive relief," a remedy whose "primary purpose and effect" is to "prohibit[] unlawful acts that threaten future injury to the general public." McGill v. Citibank, N.A., 393 P.3d 85, 86 (Cal. 2017). While plaintiffs' argument would require us, among other things, to read such a right into the Massachusetts Wage Act for the first time, we need not reach any such issues, because McGill also clarified that even under California law "[r]elief that has the primary purpose or effect of redressing or preventing injury to an individual plaintiff -- or to a group of individuals similarly situated to the plaintiff -- does not constitute public injunctive relief." Id. at 90 (emphasis added). This forecloses plaintiffs' remedy under even their argued-for standard, because it is indisputable that the relief sought here is primarily for the proposed class of Lyft rideshare drivers. Any theory of remedy for plaintiffs' purported public harms requires that the class first receive its direct benefits, with only ancillary benefits to the public that may even require the drivers to exercise discretion for the public good (i.e., choosing to utilize paid sick time to reduce the spread of an illness).

- 21 - Finally, plaintiffs also contend that the district court

ought to have accorded less weight to the irreparable harm prong,

under the theory that harm should be measured on "a sliding scale,

working in conjunction with a moving party's likelihood of success

on the merits." See Vaquería Tres Monjitas, Inc. v. Irizarry, 587

F.3d 464, 485 (1st Cir. 2009). However, plaintiffs direct us to

no authority suggesting that this would permit an injunction on a

showing of no irreparable harm at all. See Pub. Serv. Co. of N.H.

v. Town of W. Newbury, 835 F.2d 380, 383 (1st Cir. 1987) ("Because

of our analysis [finding no] irreparable harm, we need not reach

the question of likelihood on the merits."). Further, in arguing

that a court could properly issue a preliminary injunction in this

rare context, plaintiffs themselves point out that "preventing

irreparable harm is the animating purpose of interim relief

provided pending arbitration." Plaintiffs cannot have it both

ways, arguing in one context for a reduced emphasis on irreparable

harm while acknowledging that this prong is the "animating purpose"

of the very remedy they seek.

IV.

For the forgoing reasons, the district court's

decision denying defendants' motion to compel arbitration is

reversed, and the decisions denying plaintiffs' motions for a

preliminary injunction are affirmed.

- 22 -